The Equality Act 2010 & Professional Regulation

Most professional regulators are what are known as ‘qualifications bodies’ for the purposes of the Equality Act 2010 (‘the Act’). The Act makes it unlawful for a qualifications body to discriminate in particular circumstances against individuals whom it regulates. The duties owed by professional regulators as qualifications bodies under the earlier discrimination legislation[1] have now been repealed and replaced by those in the Act.

The Act does a number of things. First it consolidates earlier legislation. Secondly, it introduces substantial uniformity across all strands of discrimination. Thirdly, in some instances it extends the circumstances under which regulators may be held liable for discrimination.

What Is A Qualification Body?

A qualification body is, (subject to exceptions not relevant here[2]:

‘an authority or body which can confer a relevant qualification[3].

Conferring includes renewing or extending the conferment of the relevant qualification[4]. A relevant qualification is in turn defined as:

By definition, regulators of the professions regulate access to their particular trade or profession and in doing so they confer on individuals relevant qualifications of the kind defined which facilitates engagement in that trade or profession.

The Duties On Qualifications Bodies

The duties owed by qualifications bodies are set out in section 53 of the Act and are as follows:

A qualification body must not discriminate against, or victimise, a person (B):

in the arrangements it makes for deciding upon whom to confer a relevant qualification;

as to the terms on which it is prepared to confer a relevant qualification on B;

by not conferring a relevant qualification on B.

If it has already conferred a relevant qualification on B, the qualifications body must not discriminate against him or victimise him by:

withdrawing the qualification;

varying the terms on which the qualification is held;

subjecting B to any other detriment.

A qualification body must not, in relation to the conferment of a relevant qualification, harass a person who either holds a qualification or applies for one.

In the case of a disabled person a qualification body must comply with the duty to make reasonable adjustments.

The duties under the Act are more comprehensive than in the earlier legislation particularly with the inclusion of liability for discrimination by subjecting the individual concerned to ‘any other detriment’. A detriment is any disadvantage but does not include an unjustified sense of grievance[6]. Previously liability was confined to cases in which there was discrimination in the conferring of the authorisation or qualification, the refusal to grant an application for authorisation or qualification, or the withdrawal or variation of this. Now an aggrieved person can complain more generally about treatment by the qualifying body.

Protected Characteristics

The way in which the Act operates is to list and then define ‘protected characteristics’. That is, the characteristics which give individuals protection under the Act. The Act then defines prohibited conduct in relation to those protected characteristics.

The protected characteristics are[7]: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race (including colour, nationality and ethnic or national origins); religion or belief; sex; sexual orientation. Each of these protected characteristics is subject to an extended definition[8] and there is also a raft of case law in the employment sphere that will inform any argument as to the scope of each of the protected characteristics.Of particular note in the context of issues commonly facing regulators is the definition of ‘disability'[9]. A person is regarded as being disabled if that person has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. ‘Long term’ is defined[10] to mean that it has lasted for 12 months, is likely to last for 12 months, or is likely to last for the rest of the life of the person affected. It will also be treated as having a substantial adverse effect if it is likely to recur or if it is a progressive condition which is likely to result in that level of impairment. The effect of medical treatment is to be ignored. Certain conditions are deemed to be a disability, such as cancer, HIV and multiple sclerosis.

Prohibited Conduct

Chapter 2 of Part 2 of the Act lists and defines prohibited conduct. For present purposes there are essentially six relevant types of prohibited conduct.

Direct Discrimination[11]

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. In the case of the protected characteristic of age it will not be discrimination if A can show that his treatment of B is a proportionate means of achieving a legitimate aim. In the case of disability, favourable treatment of a disabled person will not be discrimination against a non-disabled person. In the case of marriage and civil partnership it will only be discrimination if the treatment is towards B who is married or in a civil partnership.

An obvious (albeit unlikely) example of direct discrimination would be to refuse to confer a relevant qualification on a person because she is a woman.

Indirect Discrimination[12]

This is where an apparently neutral condition is applied to everyone but has a disparate impact on a protected group. It involves the following: The application by a qualifications body of a provision, criteria or practice (PCP) to B and to persons with whom B does not share a protected characteristic. The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared with others who do not have that particular characteristic. It does in fact put B at that disadvantage. The qualifications body cannot show that is a proportionate means of achieving a legitimate aim. This kind of discrimination arises, for example, where an apparently neutral condition, the fulfilment of which is a pre-requisite for conferment of a relevant qualification, has a disparate impact on candidates of a particular nationality or race. This occurred in an early case[13] where, at that time, in order to qualify for the English bar in 12 months it was necessary for non-law graduates to have a ‘home’ degree, i.e. a degree from an English or Irish university. This was a PCP applied to all applicants. Applicants without such a degree were required to complete a longer 21-month course. It was held that this indirectly discriminated against an American applicant. English language requirements for professional accreditation by foreign applicants have also been challenged in this way[14].

Disability Related Discrimination[15]

This arises where A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that his treatment of B is a proportionate means of achieving a legitimate aim. There will be no discrimination if A did not know and could not reasonably have been expected to know of B’s disability.

An example of this type of discrimination would be notification to a regulator that a person was not fit to attend a disciplinary hearing because they had a particular disability, such as long-term clinical depression. To proceed in that person’s absence would be treating him or her less favourably because of something arising in consequence of his or her disability. The regulator would then have to be prepared, and able, to justify proceeding in the absence of the person concerned if it decided to do so. Although the approach is different, the factors that arise under the usual principles relating to proceeding in a person’s absence would also come into play[16] when establishing justification.

Duty To Make Adjustments[17]

This strand of prohibited conduct is confined to cases of disability and is a form of discrimination[18]. The duty to make reasonable adjustments arises where a provision, criterion or practice (PCP) of A’s, or a physical feature of A’s premises puts a disabled person at a substantial disadvantage in relation to a ‘relevant matter’ compared to non-disabled persons. It also arises, where, but for the provision of an auxiliary aid, a person would be put at a substantial disadvantage in relation to a relevant matter compared to non-disabled persons and it is reasonable to provide that aid. A reasonable adjustment is the requirement to take such steps as are reasonable so as to avoid the disadvantage. There is no duty to make reasonable adjustment if the qualifying body does not know and could not reasonable be expected to know: (i) in the case of an applicant or a potential applicant that they are or may be an applicant for the conferment of the relevant qualification, or; (ii) in any other case that the individual concerned was disabled and likely to be placed at a disadvantage[19].

The ‘relevant matter’ is when the qualifications body is deciding upon whom to confer a relevant qualification and in the conferment of a relevant qualification[20]. In this respect the duty owed under the Equality Act is narrower than that owed under the Disability Discrimination Act 1995. Under the earlier Act the duty was not confined to a duty to make reasonable adjustments where the disadvantage was in relation to a ‘relevant matter’ nut was a duty owed whenever the PCP or physical feature of premises occupied by the qualifications body placed an individual at a substantial disadvantage.

Disciplinary rules are often regarded as a PCP. Thus, for example, a rule requiring documents to be served by the defendant by a given date or requiring him or her to attend a particular hearing on a given date may be a PCP. If the person concerned cannot comply with the requirements because of the effect of a disability then the regulator has a duty to make reasonable adjustments. This may involve extending the date for service of the documents or adjourning the hearing.

Harassment[21]

Here a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristics and that conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading or offensive environment for B. in deciding whether conduct has the effect referred, to the perception of B, the circumstances of the case, and whether it is reasonable for the conduct to have that effect are to be taken into account. There are also similar provisions concerned specifically with sexual harassment and harassment relating to gender re-assignment.

Victimisation[22]

This occurs where A subjects B to a detriment because of a protected act previously done by B. the protected act can be one of four things: Bringing prior proceedings under the Act (this can be against anyone not simply A); giving evidence or information in connection with any proceedings under the Act; doing anything for the purposes of or in connection with the Act; making an allegation (whether or not expressly) that A or any other person has contravened the Act. False information or evidence given in bad faith will not be a protected act. An example of victimisation would be where a regulator disciplined a person because he or she had made a complaint of race discrimination against it or against any other person.

The ‘Competence Standard’

The Act defines a ‘competence standard’ as an ‘academic, medical other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability[23]. The Act provides that it is not disability discrimination to apply a competence standard unless to do so amounts to indirect discrimination[24].

The effect of this is that the only occasion on which a disabled person will be discriminated against in respect of the application of a competence standard is if the competence standard applies the same PCP to everyone but this has a disparate impact on disable people and the individual in particular and, importantly, the performance standard cannot be justified by the regulator as a proportionate means of achieving a legitimate aim. Justification will not be difficult in most cases of substandard performance. Take for example, a medical or dental practitioner who, because of a disability, is unable to concentrate whilst carrying out surgical or dental procedures such that his fitness to practise is impaired or an accountant whose cognitive function is impaired by reason of a medical condition such that he has a sub standard level of professional practice. The requirement to be able to practise to a given standard applies to everyone who is subject to the relevant competence standard but it has a disparate impact on disabled people with the particular condition that the practitioner has. However, the regulator would have no difficulty in establishing that the competence required by the competence standard was a proportionate means of achieving a legitimate aim as its purpose is to ensure that the public and/or other users of the services are protected from incompetent performance. Thus if the performance of a regulated individual has deteriorated because he has suffered a medical condition amounting to a disability, it will not generally be disability discrimination to enforce the relevant regulatory standard by withdrawing the relevant qualification or by varying the terms on which it is held.

The Act also provides that the application of a competence standard is not a PCP for the purposes of the duty to make reasonable adjustments[25]. This duty will not therefore be engaged so far as the issue of performance is concerned unless the disabled person’s fitness to practice is impaired only because reasonable adjustments to which he is entitled have not been made. Put another way, if a disabled person is entitled in his practice to reasonable adjustments and these have not been made the qualifications body will need to consider whether his fitness to practise would be impaired if they were made. In the matter of Horan[26] the Review Panel of the Bar Standards Board considered judges have an obligation to make reasonable adjustments for disabled barristers and that if a barrister’s fitness to practise is called into question it has to be assessed taking into account the adjustments that judges can be expected reasonably to make in compliance with the Equal Treatment Benchbook[27].

The duty will of course be engaged in the procedural aspects of any regulatory proceedings which are determining the conferment, variation or withdrawal of a relevant qualification.

There is of course room for debate as to what is or is not a competence standard. For example, a disabled student undertaking a legal Practice Course exam sought to argue that the duty to make reasonable adjustments required that he be given additional time to complete the exam over the 60 per cent additional time already permitted and that he be permitted to take the exam at home[28]. The employment tribunal held that the time in which the exam had to be completed was a competence standard and therefore reasonable adjustments were not required. Whilst the requirement for supervision was not a competence standard, to dispense with supervision so as to enable the exam to be taken at home was not something that was required as a reasonable adjustment.

Jurisdiction & Enforcement

Under the earlier discrimination statues there was little consistency on the issue of jurisdiction and enforcement. For example, the Race Relations Act 1976[29] provided that the employment tribunal was to have jurisdiction for cases involving qualifications bodies save in cases where there was a statutory appeal. The effect of this was that many direct race discrimination claims were kept out of the tribunal system[30]. However by, it would appear, drafting error[31], harassment cases were omitted from this exclusion and this was then exploited in the case of Zaman v General Medical Council[32] by the claimant effectively relabeling a race discrimination claim as a harassment claim to keep it in the employment tribunal. By contrast the jurisdiction and enforcement provisions of the Disability Discrimination Act 1995 excluded from the employment tribunal, where there was a statutory appeal, proceedings for both harassment and discrimination that concerned a complaint relating to the conferring or withdrawal of a relevant qualification, but kept complaints relating to a failure to make reasonable adjustments in the employment tribunal. By further contrast, the regulations prohibiting discrimination on the grounds of age, sexual orientation and religious belief had enforcement provisions that were drafted in a different form than the other discrimination legislation.

These and other distinctions have now been swept away and a breach of the duties owed by a qualifications body is enforceable in the employment tribunal subject to one important exception: ‘where the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal’ the employment tribunal will not have jurisdiction[33].

This gives rise to two issues. First, those regulators whose procedures do not provide any statutory right of appeal or review[34] will have to defend discrimination claims in the employment tribunal. Secondly, in the cases of regulators that have a statutory appeal procedure it will be necessary to identify with some care what the alleged discriminatory act is, as whether or not the ‘act complained’ may be the subject of an appeal or proceedings in the nature of an appeal will depend on both the allegation and the statutory provision that provides the right of appeal or review. Aggrieved claimants will probably seek, where possible, to bring cases in the employment tribunal because generally costs do not follow the event.

Questionnaires

Regulators unused to discrimination claims may not be familiar with the questionnaire procedure used in discrimination claims[35]. This entitled any person who thinks that the Act has been contravened to serve a questionnaire in the statutory form requesting information prior to proceedings having commenced or within 28 days of the commencement of proceedings. The questions are required to be answered within 8 weeks. If they are not, the court or tribunal may draw an inference from the failure to answer the questions in time or from an evasive or equivocal answer.

Statutory Guidance

At the time of writing the Equality and Human Rights Commission has not produced updated guidance for qualifications bodies and therefore the existing Code of Practice relating to disability discrimination by qualifying bodies issued by the Disability rights Commission remains in force[36].